Prime Ag Soils In Jeopardy?

Let’s take a second to think about what Vermont’s landscape will look like 100 years from now.  Good.  You closed your eyes and pictured this:


Or did you picture this:

Or something in between?

A recent Vermont Supreme Court decision might make it easier for developers, like the one on the right, to build on prime agricultural soils.  The decision could set a precedent that requires the Environmental Court to consider costs associated with tree removal as part of the equation that determines whether or not developers pay into a fund that preserves prime agricultural soils.  It is a precedent that ultimately might put more of what many deem to be a priceless resource, Vermont’s prime agricultural soils, in jeopardy.  A bit more on this case a bit later, but first here’s some background:

Protecting farmland forever is possible in Vermont with off-site mitigation funds set aside through the Act 250 process.   Act 250 was designed to foster a delicate balance between development and agriculture.  Off-site mitigation fees are imposed on developers who undertake projects that involve the disturbance of primary agricultural soils.  The fees are placed into a fund that backs the purchase of conservation easements for farms in other locations with prime agricultural soils.  Off-site mitigation fees, in most cases, must cover the purchase of conservation easements for at least twice the acreage of soils that are being disturbed in the development project.

What does this mean for new farmers hoping to find good land?  While the total base of tillable land in Vermont will shrink with each development project that overtakes farmland, at least there is a mechanism in place to ensure that some acreage will always be available for farming, and if the opportunity is right, at bargain prices.  The Vermont Land Trust’s Farmland Access Program, for example, has transferred conserved properties to eligible new farmers at the reduced “agricultural use” value of the property.

The Act 250 permit process can open doors for new farmers to lease land as well.  If development can happen in a way where prime agricultural soils can be set aside at the same property being developed, then the Act 250 permit is approved on the condition that there be soils set aside for on-site agricultural use.  In this case, the land would still be owned by another entity, and it could be leased to a farmer.

On-site mitigation is common in more rural areas where surrounding land is being farmed.  Off-site mitigation is more common in suburban or urban areas where it makes more sense to have denser development and less open space.  This is inline with initial Act 250 “smart growth” principles to “create compact urban and village centers surrounded by rural countryside.”

O.k., back to the 100 year vision of what Vermont’s landscape will look like.  Whether it be on-site or off-site, Act 250 mitigation and conservation easements through the Vermont Housing and Conservation Board and the land trusts are virtually the only tools Vermont currently has for ensuring the long-term accessibility of farmland for its farmers.  They’re some of the most effective tools Vermont has for preserving a ‘working landscape’ for its citizens.  In fact, if it were not for conservation easements (and ways of funding them, such as off-site mitigation) there would be little hope for having any farmland left in the state 100 years from now.

Those who support the idea of sustaining agriculture in Vermont might take serious issue, then, with a recent Vermont Supreme Court decision.  It might set a precedent that would significantly decrease the benefits of off-site mitigation and put more of Vermont’s prime agricultural soils in jeopardy.

The Court examined an appeal of a housing developer who wished to avoid paying into off-site mitigation  The argument was that because the prime agricultural soil was covered by trees, it presented a limitation too great for any farmer to overcome, and thus did not constitute a prime agricultural soil that required a developer to pay fees to mitigate.  (See a recent Burlington Free Press article by Joel Banner Baird)

I’ll be examining this Supreme Court decision in detail in my next blog post.  Needless to say, farmland is one of our most precious resources–prime farmland especially.   This issue definitely deserves a closer look.


About Ben Waterman

Ben writes about land access, tenure, and stewardship issues that are relevant to new farmers in Vermont. He coordinates the Land Access Program at UVM Center for Sustainable Agriculture:
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